Local Government - Town planning - Appeal - Resource Management and Planning Appeal Tribunal - Planning Scheme - Failure to consider all relevant provisions.

Local Government - Town planning - City of Hobart Planning Scheme - Interpretation.

Local Government - Resource Management and Planning Appeal Act 1993, ss23, 24 and 25 - Proceedings before Appeal Tribunal.

Counsel for appellant: K A M Pitt QC and D Armstrong

Solicitors for 1st respondent: Murdoch Clarke Cosgrove and

Drake

Counsel for 2d - 5th respondents: R Young

Solicitors for 2d - 5th respondents: Jennings Elliott

Uphold the appeal and remit the development proposal for rehearing by the Tribunal.

WRIGHT J This is an appeal pursuant to the Resource Management and Planning Appeal Act 1993, ("the Act") s25. The appeal is against a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") originally delivered on 28 July 1994 and then amended and republished on 26 August 1994, presumably in reliance upon the Act, s23(5). None of the parties sought to suggest that reliance upon that subsection was misplaced or that the Tribunal was functus officio after 28 July 1994. All counsel, with the exception of counsel for the Hobart City Council ("the Council") who sought and was granted leave to withdraw as soon as he had announced his appearance, were content to proceed on the basis that the amended and republished decision on 26 August 1994 should be treated in all respects as the relevant decision of the Tribunal for the purposes of the appeal. This appears to me to be appropriate.

2. The following narrative of historical facts has been taken from the Tribunal's decision:

"In about 1987 Dr R Von Witt obtained planning approval

to use part of the house in which she resides at 9

Stoke Street, New Town as consulting rooms for her

practice as a medical practitioner in general practice,

with a special interest in allergies.

In late 1991 Dr Von Witt made application to the Hobart

City Council for a grant of planning approval for the

demolition of an existing disused industrial building

at 7B Stoke Street, New Town, adjacent to her residence

at 9 Stoke Street with a view to the construction of

consulting rooms and a flat on the site of 7B Stoke

Street.

The application was granted by the Hobart City Council

but on appeal to the Planning Appeal Board, the

Council's decision was set aside.

Subsequently Dr Von Witt obtained planning approval to

build two residential units on the subject site,

utilizing the existing shed.

Subsequently on 23 March 1994, Dr Von Witt applied to

the Hobart city Council for planning approval to change

the use of Unit 1 7B Stoke Street from residence to

consulting rooms proposing the withdrawal of her

approval for consulting rooms at 9 Stoke Street.

The proposal was to return the house and consulting

rooms at No 9 Stoke Street to simply a house. In

conjunction it was proposed to use the ground floor of

Unit 1 7B Stoke Street as consulting rooms, removed

from No 9 with the top floor of the unit being used as

storage and accommodation for occasional guests and

family of the occupants of No 9 Stoke Street. Dr Von

Witt indicated that no expansion of the existing

medical practice conducted from 9 Stoke Street was

proposed.

Council granted planning approval for a partial change

of use to consulting rooms at 7B Stoke Street, New Town

and change of use to a house at 9 Stoke Street, New

Town on the following conditions:

1 Submission and approval of working drawings complying

with the Building Regulations 1978 and being

substantially in accordance with the planning

application.

2 The consulting rooms at Unit 1 7B Stoke Street are to

be used only by Dr Victoria Von Witt.

3 The consulting rooms at No 9 Stoke Street are to be

vacated for the purpose of consulting rooms prior to

the consulting rooms at Unit 1 7B Stoke Street

commencing operation.

4 Dr Von Witt is to provide a written undertaking to

the Council to the satisfaction of the City Solicitor

prior to building approval being issued that conditions

2 and 3 will be adhered to.

5 The hours of operation of the consulting rooms are to

be restricted to 9.00am-4.30pm Monday to Friday.

6 The consulting rooms at 7B Stoke Street are to be on

the ground floor only with storage only on the first

floor.

7 If you sell, lease or otherwise dispose of the

property 7B and 9 Stoke Street this permit shall lapse.

The appellants appealed to the Tribunal."

3. By the Act, s23(1), the Tribunal is vested with all the powers that are conferred by the relevant legislation on the person who made the decision which gave rise to the appeal.

4. The appeal before the Tribunal proceeded by way of a rehearing de novo of Dr Von Witt's development application on 27 July 1994. Oral evidence was taken and documentary material was produced.

5. In its 4 and a half page reserved decision delivered on 26 August 1994 the Tribunal upheld the appeal and set aside the decision of the Council. In substitution for that decision the application for planning approval by Dr R Von Witt was refused and the Tribunal directed that a permit in respect of the proposed development not be granted.

6. The Act, s25 provides that a party to an appeal before the Tribunal may appeal to this Court on a question of law.

7. There were originally thirteen grounds of appeal. Ground 13 was abandoned and some of the others were not pursued individually. In essence, the appellant complains that the Tribunal wrongly interpreted the City of Hobart Planning Scheme ("the Scheme") in that it effectively regarded the use proposed by Dr Von Witt as a prohibited use in Residential Zone 1, Precinct No 17 within which Stoke Street is situated. This result was achieved, it was submitted, by the combined factors that the Tribunal misinterpreted the Scheme and erroneously characterized Dr Von Witt's medical practice as a "commercial" use. The appellant further complained that as a consequence of adopting this approach to the application for approval the Tribunal failed to consider evidence placed before it as to the effect of the proposed use upon the character and amenity of the area and other matters going to the merits of the proposed development. In particular the Tribunal failed to attach any significance to the fact that Schedule A which quite explicitly specifies the land uses which are "approved", "discretional" or "prohibited" in each Precinct, indicated that in Precinct No 17 the development of land for consulting rooms is a "discretional" use. Ground 12 alleged that the Tribunal failed to comply with the Act, s24(2) in failing to refer to the evidence on which it based its findings as to the effect of the proposed use upon the character and amenity of the area. The Act, s24, provides as follows:

"24 (1) Subject to this section and to section 23,

the Appeal Tribunal must give written reasons for its

determination of an appeal.

(2) The reasons must include its findings on material

questions of fact and a reference to the evidence or

other material on which those findings were based.

(3) The Appeal Tribunal must cause a written copy of

its reasons to be given to each party to the appeal."

8. Ground 3, dealing with the weight of evidence, is plainly not maintainable on an appeal of this kind and need not be considered further.

9. The Tribunal's reasons for its decision were stated as follows:

"In the Tribunal's view planning approval should not

have been granted by the Hobart City Council as it is

inappropriate to exercise the planning discretion in

this residential zone to allow such a non residential

use. The area concerned is in the Residential 1 Zone

prescribed by the City of Hobart Planning Scheme 1982.

The objective of the Residential 1 Zone is as follows:

'To sustain and enhance the character and amenity of

established residential areas with diverse dwelling

types, with minimal intrusion or further development of

non residential uses not necessary to serve local

residents.'

The subject land falls within the East New Town

Precinct - No 17, established pursuant to the Planning

Scheme.

Clause 5.7.2 of the Scheme states the zone objectives

and statements of desired future character for the

precinct.

Clause 5.7.2 reads as follows:

'The Precinct should continue as an inner urban

residential area consisting principally of single

detached houses set mainly on small to standard size

allotments.

Changes of use of existing buildings to flats and

accommodation hostels may be permitted in appropriate

locations close to institutional uses and Risdon Road

and New Town Road. Commercial activities will

generally be restricted to existing non conforming uses

or be allowed on the scale of a domestic business.

However, local shops may be permitted in conjunction

with an existing residential use where there is a lack

of such facility in the vicinity.'

The only expert planner who gave evidence in this

appeal was Ms Loveday.

Ms Loveday stated 'it is clear that the existing

consulting room use is beyond the scope of domestic

business and although it is not a prohibited use in the

zone it is a consulting practice that does not serve

local residents and therefore could be seen as a

commercial use rather than a local service.'

In the Tribunal's view that statement is at the heart

of the matter notwithstanding that a proportion of Dr

Von Witts patients are said to reside in the immediate

neighbourhood.

The Tribunal recognizes Ms Loveday favoured the grant

of planning approval to Dr Von Witt on the basis that

there would be no increase at 7B Stoke Street of the

intensity of the use already established at 9 Stoke

Street however, in the Tribunal's view, that is not the

appropriate test.

Whilst not the only test, the Tribunal is of the view

that a valuable test of the appropriateness of this

development is to ask whether the use could properly be

established at 7B Stoke Street if the consulting rooms

proposed to be moved did not already exist at 9 Stoke

Street.

In the Tribunal's view an application at this site to

convert a residential unit into consulting rooms would

not be granted. Ms Loveday was also of that view. To

grant such approval would not be to sustain or enhance

the character and amenity of this established

residential area and would not be consistent with the

desire to restrict commercial activities generally to

existing non conforming uses or to allow them on the

scale of a domestic business.

In the Tribunal's view it is not sufficient to say that

all that is happening is a transfer of Dr Von Witt's

present practice from 9 Stoke Street to 7B Stoke Street

and that the proposal restricts the existing use in its

size and intensity and removes the potential for the

existing use to change practitioners by tying the

planning approval personally to Dr Von Witt and by

tying the approval across the two properties.

The planning approval granted by the Hobart City

Council takes the medical practice away from the home

of the practitioner where it may be regarded as in the

nature of a 'home practice' or 'domestic business' and

removes it to a separate building on a separate site on

a separate title with three times the existing floor

area. To do that is to establish it as a clearly

identifiable separate land use and to say that the

conditions of approval achieved the confinement of the

use of these consulting rooms to Dr Von Witt's practice

so long as she remains the owner and occupier of 7A and

9 Stoke Street, New Town is to ignore the reality of

the situation.

If at some future time Dr Von Witt wished to dispose of

7B Stoke Street to another medical practitioner wishing

to practice there, the Council would find it very

difficult to refuse a further grant of approval.

Conversely, if Dr Von Witt were to sell the property at

9 Stoke Street, perhaps even with the consequent loss

of car parking space to consulting rooms established at

7B Stoke Street, it would be difficult for Council to

refuse a further grant of planning approval for Dr Von

Witt to continue using the consulting rooms at 7B Stoke

Street when those consulting rooms were an established

use and Dr Von Witt had simply moved residence.

In the Tribunal's view it is unnecessary to consider

the other arguments raised by the parties to this

appeal concerning matters such as noise, traffic,

parking and loss of privacy as the undesirability of

allowing the further entrenchment of a non residential

use in this precinct is determinative of the issue."

10. Mr Young, counsel for the respondents, submitted that the approach of the Tribunal had been correct because Pts4 and 5 of the City of Hobart Planning Scheme dealing with principles of development control and zone objectives and statements of desired future character respectively, both separately and together, constituted some kind of threshold test which must be satisfied before a prospective developer may seek the exercise of the Council's discretion to permit a "discretional" use in accordance with Schedule A of the Scheme.

11. In my opinion the respondents' arguments cannot be sustained. Clause 2 of the Scheme clearly identifies the proper approach to a development application. It says:

"2.3.2 Before granting or refusing approval for any

development or imposing conditions in respect of any

development the Corporation shall have regard to:

a) the Principles;

b) the Desired Future Character of the Precinct in

which the development is situated; and

c) the provisions of any relevant Schedule and/or Code;

d) any valid representation received in relation to an

application for (sic) which the (sic) Section 733 B of

the Act applies."

12. This makes it clear that all four of the enumerated factors are to be considered by the Council before making a decision in respect of a development application. This is precisely what one would expect bearing in mind the great variety of land uses which may need to be considered by the Council and the wide discretion which it may be called on to exercise in any individual case.

13. The Scheme must be read as a whole and the generalized statements of principles, objectives and desired future character cannot be relied upon to the exclusion of subsequent specific provisions contained in any Schedule except where this is provided for by the Scheme itself. For example, parP3 of the "Principles of Development Control" says:

"Notwithstanding the provisions of any Part or Schedule

of this Planning Scheme, the Corporation may use its

discretion to permit an existing use to change to any

use more in conformity with the Desired Future

Character of the relevant Precinct."

14. As I read the Scheme this is the only provision which vests a power in the Council to override the controlling provisions of the Parts and Schedules.

15. Paragraph P1 of the "Principles of Development Control" says:

"The use and development of land throughout the

Planning Area shall be controlled by mandatory

provisions of the Parts and Schedules that constitute

the Planning Scheme, and may be further or differently

controlled by the exercise of the Corporation's

discretion to refuse or permit development in

accordance with the relevant Objectives and Desired

Future Character relating to particular Zones and

Precincts respectively."

16. This makes it clear, in my opinion, that both Parts and Schedules are to be read together, mandatory requirements of each must be observed, and where the Council has a discretion it must act in accordance with the stated objective (if any).

17. The C Series Amendments amending the Statement of Desired Future Character for Precinct 15A provide a good illustration of a clear mandatory prohibition against non residential use except in certain specific circumstances. In this Precinct therefore the discretionary uses listed in Schedule A, which are very limited by the terms of that Schedule in any event, must comply with the Statement of Desired Future Character if new developments are to be permitted.

18. In dealing with the objectives of Residential 1 Zone (which are accurately stated in the Tribunal's written decision which is reproduced above) it seems to me that the Tribunal has ignored the qualifying effect of the words "with minimal intrusion of further development of non residential uses not necessary to serve local residents." To my mind this provision amounts to a clear recognition that, whilst the desire is to maintain and improve the overall residential character of development in that area, and that non residential uses necessary to serve local residents may enhance the amenity of the area, other developments are not absolutely excluded although their introduction should be kept to a minimum. This is a numerical rather than a qualitative restriction.

19. It also appears to me that the Tribunal has misinterpreted the particular objective contained in the Scheme, in respect of the East New Town Precinct. There is no need for me to repeat cl5.7.2 which the Tribunal also set forth in its reasons. The first matter to note is that "commercial" activities will "generally ... be allowed on the scale of a domestic business." Local shops (obviously businesses engaged in commercial activities) may be permitted in the conditions specified. In determining whether these objectives will be met by a prospective developer there must be at least two enquiries. Is the proposed use a "commercial" activity? and if so, is it on the scale of a "domestic business"? It will be seen from the Tribunal's reasons that it answered the first of these enquiries in the affirmative, principally if not solely on the basis of an opinion expressed by Ms Loveday. It may also have been influenced by Dr Von Witt's own concession in evidence that her practice was a "commercial" undertaking. With all respect to the Tribunal and the two witnesses, I would have thought that the practice of a learned profession was the very antithesis of a "commercial" enterprise and that the Tribunal's characterization of the proposed activities to be conducted by the doctor at 7B Stoke Street in this way was quite wrong.

20. In Re Ashley Colter (1961) Ltd v Minister of Municipal Affairs (1970) 10 DLR (3d) 502 at 505, Hughes JA defined the phrase "used for any commercial purpose" in its ordinary sense as meaning "used for a purpose in relation to trade and the buying selling and exchange of commodities for profit." Donaldson J in Pando Compania Naviera SA v Filmo SAS (1975) QB 742 at 746 observed that it would be erroneous to describe persons whose experience is solely as practising members of the legal profession as "commercial men". In my opinion the Tribunal was in error in accepting that Dr Von Witt's professional practice could or should be regarded as a "commercial" use for the purposes of the Scheme.

21. The Tribunal did refer to the second enquiry which I have postulated and it seems clear from the definition of "domestic business" in clA.1.1 of the Scheme that Dr Von Witt's proposed practice would indeed exceed such an enterprise "in scale". It is interesting nonetheless to see that the reference to a "domestic business" and the meaning given to that phrase by the Scheme further confirms the impression which I have received that the draftsman of cl5.7.2, in the final two sentences of the second paragraph, has confined his attention to trading undertakings and has neither given nor attempted to give guidance as to other types of non residential and non commercial activity which may be granted development permission in that Precinct. The second matter to note in this regard is that even commercial activities are only to be restricted or allowed as the case may be, "generally". In my opinion, "generally" in this context means "in most instances but not without exception". There is no absolute embargo on the introduction of such enterprises into the Precinct. Thus, even if correctly characterized as "commercial", Dr Von Witt's practice would not necessarily be at odds with cl5.7.2.

22. General principles suggest to me that it would be surprising if the statement of objectives in the Scheme were intended to be given the dominance and inflexibility which the Tribunal's approach appears to have accorded them. To do so would be to rob many of the specific provisions of the Schedule A of any effect at all. As I have said that Schedule quite plainly and unambiguously contemplates the possible development of land for "consulting rooms" in the East New Town Precinct if, as a matter of discretion the Council should consider that an appropriate course in any individual case. The discretion reposed in the Council to consider and permit such a use cannot be set at nought by statements of general intent and purpose contained in cl5.7.2, nor, as I have already indicated, is this the result which flows from a proper interpretation of that clause or the Scheme as a whole.

23. The Tribunal based its decision ostensibly upon "the undesirability of allowing the further entrenchment of a non residential use in this precinct" but it reached that conclusion principally, if not entirely, upon its erroneously selective reliance upon cl5 of the Scheme and did not refer to Schedule A in any way at all. Although the Tribunal referred to the evidence and arguments based upon the fact that Dr Von Witt's proposal involved not only the development of No 7B Stoke Street as described but also the abandonment of the non conforming use currently operating at No 9 Stoke Street, it did this in such a way as to indicate that such considerations, if not irrelevant, were wholly subservient to the requirements of cl5. In misdirecting itself in these ways the Tribunal erred in law. As Clarke JA said in Randwick Municipal Council v Manousaki (1986) 66 LGRA 330 at 333:

"An error of law may arise 'where it appears that the

trial judge has misdirected himself that is, has

defined otherwise than in accordance with law the

question of fact which he has to answer. A possibility

of this kind exists with ultimate findings of fact but

not with respect to primary findings of fact such as

whether the applicant suffered injury on a particular

date. Further an ultimate finding of fact, even in the

absence of a misdirection, may reveal error of law if

the primary facts found are necessarily within or

outside a statutory description and a contrary decision

has been made: Hope v Bathurst City Council (1980) 144

CLR 1 at 10; [1980] HCA 16; 41 LGRA 262 at 268; Australian Gas Light

Co v Valuer-General (1940) SR (NSW) 126; 14 LGR 149':

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR

139 at 156 per Glass JA."

24. His Honour also referred at 334 to the distinction (which did not appear to be clearly made by counsel in the present case) between an appeal on a question of law and an appeal in the nature of a rehearing from a discretionary judgment. House v The King [1936] HCA 40; (1936) 55 CLR 499, which was referred to by Mr Pitt, involved an appeal of the latter kind. It is not for me to anticipate or seek to influence the approach of the Tribunal upon a rehearing of the appeal and I therefore refrain from commenting in detail upon the evidence relating to the exchange of uses between Nos 9 and 7B Stoke Street. Whilst this is an obviously relevant matter it is something to which the Tribunal may properly accord such weight as it sees fit. I only mention it at this stage to point out that in its present decision as a result of its misconception of the provisions of the Scheme the Tribunal seems to have accorded the material less value than it may otherwise have had.

25. In my opinion grounds 1, 2 and 4, 5 and 6 of the appeal succeed; grounds 7 to 11 inclusive appear to be merely specific illustrations of those matters which the Tribunal did not deal with or dealt with inadequately as a result of the errors referred to in the preceding grounds.

26. There is no need for me to consider ground 12 of the appeal save to say that the requirement that the Tribunal must include in its reasons "a reference to the evidence or other material" on which its findings are based, does not oblige the Tribunal to set out such evidence or material in detail. In my opinion it will usually suffice if such evidence or material is referred to briefly and compendiously so long as it is clear which witnesses or documents are the source.

27. I propose to uphold the appeal and remit the development proposal for rehearing by the Tribunal.

28. In accordance with the Act, s25(6), I order that:

(a) The decision of the Tribunal be set aside.

(b) The appeal to the Tribunal be remitted for

reconsideration by the Tribunal in accordance with law.